from the government-still-thinks-it's-1979 dept

A couple of weeks ago, the government petitioned the Fourth Circuit Court of Appeals for an en banc rehearing of its decision finding that the acquisition of historical cell site location information (CSLI) requires a warrant. The government used many of the arguments the dissenting opinions did -- mainly that CSLI should still be considered a "business record" under the Third Party Doctrine.

It argued that while the court had held that cellphone users do not voluntarily convey location data when they use their phones, they also do not affirmatively agree to provide service providers with time, date, number called and length of the phone. These are all just parts of how service providers do business. With this argument, the government hopes to equate the tracking technology of modern cellphones with the simple phone records created by landlines -- the latter of which can be obtained without a warrant.

Obviously, the two types of data are nothing alike. Landlines don't generate location information because they're in a fixed position. Cellphones -- on top of creating location records whenever a call is placed -- also create continuous location data as they hop towers to obtain signals, even while the phone is not in active use.

The defendants in the original case have filed their opposition to the government's request for a rehearing, arguing (naturally) that the court came to the correct decision the first time around.

The panel correctly decided that tracking a person using historical cell site location information (CSLI) for 221 days, without a warrant or probable cause, is dragnet surveillance that the Fourth Amendment prohibits. See United States v. Jones, 132 S. Ct. 945, 952 n.6 (2012). The government is essentially asking this Court to treat cell phones as personal homing beacons, providing it the wherewithal to follow and recreate a person’s every movement. The government seeks to do so without a warrant or probable cause, using the excuse that telecommunications providers also happen to know when and where an individual has gone and is going.

The difference between what the government did here and what George Orwell envisioned is that Big Brother’s constant surveillance through telescreens was stationary. But the surveillance here moves with citizens using a common household device carried in the pockets or purses of almost every American adult. Our Founders crafted the Fourth Amendment to require a warrant based on probable cause before the government could acquire such intimate information about a person. The panel’s conclusion that the government must comply with the warrant requirement before obtaining historical CSLI correctly applies the Fourth Amendment.

More to the point, the filing argues that the government's purported reason for the rehearing request is flawed in and of itself. The government noted the circuits are split in their opinions of CSLI's Fourth Amendment implications. The government says a rehearing will "resolve" the current circuit split. The defendants point out that a rehearing will do nothing of the sort, no matter how the court resolves its own differences from its first (divided) opinion. That's up to the nation's highest court to settle, should such a petition be granted.

While it is true that the majority opinion conflicts with decisions from the Fifth and Eleventh Circuits regarding the applicability of Smith and Miller and the third party doctrine, these courts had already split with the Third Circuit. The Eleventh and Fifth Circuits held that individuals have no reasonable expectation of privacy in historical CSLI because, under Smith and Miller, individuals voluntarily disclose their location data to cellular service providers…

These splits existed before the panel’s decision. The panel thoroughly addressed all the different positions in its 134-page opinion. If any further review of this issue should occur, it should be in the Supreme Court, the only forum that can clarify the fractured state of the law. A petition for certiorari is already pending in Davis, which, if granted, would resolve these splits.

The opposition filing also notes that while the government cites several court decisions in support of its Third Party Doctrine-based arguments, it relies on nothing more current than 1979's Smith vs. Maryland -- the decision that upheld the warrantless acquisition of call routing data via pen register orders. In doing so, it bypasses the most recent Supreme Court decisions on cellphones and warrants: Riley and Jones.

Riley v. California establishes that individuals have a privacy interest in historical CSLI. 134 S. Ct. 2473, 2490 (2014). Historical CSLI generated by cell phones served as one of the Court’s chief examples of “the privacies of life” included in cell phone metadata. The Court described just how intimate and detailed location data is: “Data on a cell phone can also reveal where a person has been. Historic location information . . . can reconstruct someone’s specific movements down to the minute, not only around town, but within a particular building.” Id. The Court explained the intrusive nature of CSLI tracking by adopting Justice Sotomayor’s concurrence in United States v. Jones, 132 S. Ct. 945, 955 (2012). The unanimous Riley Court thus concluded that monitoring “a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations” infringes upon an individual’s reasonable expectation of a privacy that is protected by the Fourth Amendment.

These findings are echoed in the appeals court's decision, but the US government wants those conclusions rolled back. A patchwork of conflicting opinions on CSLI and the Fourth Amendment won't be resolved until the Supreme Court addresses the issue directly, but until then the government apparently would like to keep its warrantless options open.

Snitches in your Britches

" the government hopes to equate the tracking technology of modern cellphones with the simple phone records created by landlines -- the latter of which can be obtained without a warrant."

You have to give them at least this: you know where a landline is at all times and you don't need a warrant for those. So why would you need a warrant for the same feature on a cellphone? You have to know where someone is to make a call so that is a basic feature of any phone and not special to cellphones.

Re:

People don't have personal lanline phones in the middle of the street outside where they work or at the strip club, perse; they have lanline phones as places they own (ie an apartment, place of work), which is information obtainable anyway.

Cell phones are a part of your person, whereas lanline phones exist at fixed locations.

License plate readers

The quoted portion from Riley v. California is interesting. The minute by minute tracking of movement by monitoring a license plate which we are required to carry on our vehicles could be considered almost as invasive as location data of a device that we carry on our persons.

Minor Point

I mostly agree with this, but I wanted to correct one minor point from this paragraph:

Obviously, the two types of data are nothing alike. Landlines don't generate location information because they're in a fixed position. Cellphones -- on top of creating location records whenever a call is placed -- also create continuous location data as they hop towers to obtain signals, even while the phone is not in active use.

The second sentence is just wrong. It's precisely because landlines are in a fixed position that they do generate location information. Again, though, this is a very minor point, because the final part of the paragraph is the real key here. If you're carrying a phone, your location is known, even if you are not actively using the phone. That's a whole new thing, and it's definitely a privacy invasion to give government access to this data without a warrant.

Re: Minor Point

True, but landlines don't provide meaningful location information. That is, they can't be used to track you throughout your day. They can't even be relied on to provide accurate location information for the handset that's connected, since you can technically run a phone extension to any arbitrary distance (even miles) from the phone jack.